Cite as U.S. v. Holt, - F.3d - (7th Cir. 1999)
In the United States Court of Appeals For the Seventh Circuit
No. 97-2419
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
KEVIN S. HOLT, Defendant-Appellant.
Appeal from the United States District Court for the Southern
District of Illinois. No. 95 CR 30084--Paul E. Riley, Judge.
Argued April 2, 1998--Decided March 11, 1999
Before MANION, ROVNER, and DIANE P. WOOD, Circuit Judges.
ROVNER, Circuit Judge. Kevin Holt and Kent Buckner were
indicted for conspiracy to knowingly and intentionally transfer an
automatic weapon in violation of 18 U.S.C. sections 371 & 922(o).
A jury found Holt guilty of violating 18 U.S.C. section 371, but
acquitted Buckner on both charges. Holt was sentenced to
imprisonment for thirty-three months, followed by two years of
supervised release. Holt now appeals that conviction and sentence.
Because of the conviction, we view the facts in the light most
favorable to the government. United States v. Wilson, 159 F.3d
280, 283 (7th Cir. 1998). Holt was a part-time police officer for
the Village of Glassford and owned a gun shop called the Patriot
Arms. He often attended gun shows at which he set up a booth for
his shop. At one of these gun shows, Kent Buckner offered to sell
him an M-14 rifle for approximately $1200. Some testimony
indicated that a rifle which operated only as a semi-automatic
would only be worth $600 to $700 dollars. The M-14 had a selector
switch that allowed the rifle to operate in semi-automatic or fully
automatic mode, and Holt and Buckner discussed the automatic
capabilities of the weapon. At one point, Holt covered the
selector switch with his hand, and stated "I can't let anybody see
this." Holt told Buckner that he did not have the cash, but offered
some guns in trade. He ultimately traded six guns for the M-14.
A government witness testified that the six guns would have sold
for $2800 retail when new, and Buckner estimated that they were
worth approximately $1000. Buckner gave the M-14 to Holt along
with a rifle case labeled M-14. A witness also testified that the
M-14 is a fully automatic rifle, and that it is called an M-1A if
semi-automatic. After purchasing the M-14 from Buckner, Holt
placed it underneath the table at his booth, although he displayed
other weapons on top of the table for potential customers to see.
Holt claimed at trial that he was not aware that the rifle was
fully automatic, and that he purchased it on behalf of Jimmy
Salamanca, who sometimes worked in his gun shop. Salamanca was
indicted as well, and was a cooperating witness at Holt's trial.
Holt claimed that once he discovered that the M-14 was fully
automatic, he told Salamanca to get rid of it. At a subsequent gun
show, Salamanca and Holt were again working at the Patriot Arms
booth, and Salamanca showed the M-14 to show attendee Dennis
Cummings and offered it for sale. Holt was present at the booth
during that time, but did not participate in the conversation.
Salamanca initially asked $3500 for the M-14. Cummings declined at
the time, and after the show he contacted the Bureau of Alcohol,
Tobacco and Firearms ("BATF") to report that he had been offered an
illegal sale of a machine gun. Cummings had worked as an informant
for BATF in 1985 in return for the government dropping some gun
charges against him, but the jury did not hear that information.
Acting in cooperation with the BATF, Cummings contacted Salamanca
regarding the M-14, and at yet another gun show he again viewed the
M-14 at the Patriot Arms booth. Cummings eventually purchased the
M-14 from Salamanca at a later meeting between them. The jury
rejected Holt's contention at trial that he was unaware that the
M-14 was fully automatic when he purchased it.
I
Holt first argues that the district court erred in denying his
Motion for a New Trial. The basis for his motion is that the
government improperly introduced irrelevant character evidence and
evidence of prior bad acts. Specifically, Holt challenges the
admission of testimony regarding non-payment of child support,
allegations of sexual harassment, sale of certain books and
pamphlets at his store, and plans to purchase weapons that would
soon be banned. No objection was made to any of this testimony, so
we review its admission only for plain error. As a result, we will
reverse only if "the error 'seriously affects the fairness,
integrity or public reputation of judicial proceedings.'" United
States v. Lindsey, 123 F.3d 978, 985 (7th Cir. 1997), quoting
United States v. Olano, 507 U.S. 725, 731 (1993).
As part of his defense, Holt introduced a number of character
witnesses who testified as to his reputation as an honest and
law-abiding individual. In cross-examination of those witnesses,
the government asked whether they were familiar with allegations
that he was behind on child support payments and with allegations
of sexual harassment against Holt at his workplace. Those
questions were relevant to determine the extent of the witness'
familiarity with Holt's reputation and character. In United States
v. Michaelson, 335 U.S. 469, 479 (1948), the Supreme Court declared
that
[t]he price a defendant must pay for attempting to prove his
good name is to throw open the entire subject which the law
has kept closed for his benefit and to make himself vulnerable
where the law otherwise shields him. The prosecution may
pursue the inquiry with contradictory witnesses to show that
damaging rumors, whether or not well-grounded, were afloat--
for it is not the man that he is, but the name that he has
which is put in issue. Another hazard is that his own witness
is subject to cross-examination as to the contents and extent
of the hearsay on which he bases his conclusions, and he may
be required to disclose rumors and reports that are current
even if they do not affect his own conclusion. . . .
(footnotes omitted). Rule 405 codifies that common law rule,
explicitly allowing cross-examination of character witnesses by
prior instances of specific conduct. See R. 405(b); see also
United States v. Alvarez, 860 F.2d 801, 826-27 (7th Cir. 1988).
Therefore, by calling witnesses to testify regarding his reputation
as law-abiding, Holt opened the door for the prosecution to examine
the witness' familiarity with his reputation. Holt does not now
allege that the government lacked a good faith basis for the
allegations. In fact, Holt acknowledged that he was in arrearage
in his child support payments, and that there were rumors
circulating that he was involved in sexual harassment at his
workplace. Thus, this is not a case of a prosecutor "merely taking
a random shot at a reputation imprudently exposed or asking a
groundless question to waft an unwarranted innuendo into the jury
box." Michaelson, 335 U.S. at 480. The district court did not err
in permitting the questions.
Holt next challenges the admission of testimony regarding
plans he made with another individual to purchase semi-automatic
weapons that would soon be banned. Once again, Holt did not object
to this testimony at trial, but now argues that the testimony was
unduly prejudicial because the jury might not understand that it
was legal to sell such weapons if they were purchased before the
ban went into effect. That testimony was introduced to demonstrate
his familiarity with semi-automatic weapons. It was relevant to
demonstrate that he was knowledgeable about developments in gun
laws and specifically regarding semi-automatic weapons, and to
counter his claims of ignorance regarding the capabilities of the
M-14 which he purchased. As such, the admission of that testimony
did not constitute plain error.
Finally, Holt asserts error in the government's repeated
questions regarding books and pamphlets for sale at Patriot Arms.
A typical example of such questioning is as follows:
Q. And have you ever been to defendant's gun shop?
A. Yes, I have.
Q. And are you aware that the defendant would sell manuals
instructing people how to convert semi- automatic weapons into
fully automatic weapons?
A. I'm aware he had books in his store, yes.
Q. Are you aware that there were books on those subjects?
A. Not necessarily those specific subjects, but, yes, I was
aware that there were books on a variety of subjects and that
I wasn't interested in.
Q. Now, the fact that the defendant is selling manuals
instructing people on how to make illegal weapons, that does
not alter your opinion as to his character for law
abidingness?
A. Not necessarily, no. . . .
Q. Okay. And we've heard some testimony in this trial that the
defendant also would sell the anarchist's cookbook which
instructs on how to make explosives and so forth. The fact
that he would sell such material does not affect your opinion
on his law abidingness?
A. No, not at all.
Trial Transcript, 2-24-97, at 145-46. That excerpt and others show
that the government sought to introduce the evidence to attack
Holt's "law-abidingness," and the government argues that is proper
under Rules 404(a) and 405 relating to character evidence. We
believe this evidence has no relevance for that or any other
purpose. No one has argued that the sale of those materials is
unlawful, and the government's attempt to use Holt's exercise of
that lawful right as evidence that he is not a law-abiding person
is improper. See People v. Shymanovitz, 157 F.3d 1154, 1158 (9th
Cir. 1998) ("The mere possession of reading material that describes
a particular type of activity makes it neither more nor less likely
that a defendant would intentionally engage in the conduct
described and thus fails to meet the test of relevancy under Rule
401."). The government now argues that the evidence is properly
admitted to establish Holt's knowledge regarding semi-automatic and
fully automatic weapons. There are a number of problems with this
argument. First, the record is devoid of any evidence that Holt
ever read any of the materials he sold, and therefore the testimony
could not demonstrate his knowledge. More importantly, that
explanation is belied by the repeated references to the Anarchist's
Cookbook sold at Patriot Arms. That book described how to make
explosives, which are not at issue in the case, and was entirely
unrelated to any issue regarding guns. Thus, the government's
belated characterization of the testimony is incredible, and in any
case also fails to meet the test under Rules 404(a) and 405.
Although the testimony was improperly admitted, the error was
harmless because the evidence against Holt was overwhelming.
First, we note that the character witnesses were nonplussed by the
questions. In fact, a number of them pointed out that the sale of
such books is lawful, and that such books are common at gun shops.
This is not the type of evidence likely to alter the outcome of the
trial, particularly given the other evidence against Holt in this
case. More importantly, Holt himself introduced the topic numerous
times--in his direct examination of two of his witnesses and in his
own direct examination--in an apparent attempt to blame Salamanca
for his decision to sell such books at his store. Because Holt
himself testified regarding those books, the government's questions
added little to the overall impact. Thus, the error was harmless.
II
Holt next challenges limits placed on his cross-examination of
government witness Cummings. Holt was not allowed to explore
testimony before the jury that, in 1985, Cummings had become an
informant for the BATF and the government in turn dropped criminal
charges against him. Holt did not present this argument in the
motion for a new trial which he filed within the 7-day time period.
He first raised it in a "supplemental motion" filed after that time
period, and the district court held that it was untimely. He now
argues that the supplemental motion should be considered an
amendment of the original motion and should be considered timely as
such. That argument is contrary to the language of Federal Rules
of Criminal Procedure 33 and 45(b), and must fail.
Rule 33 provides that "[a] motion for a new trial based on any
other ground [than newly discovered evidence] shall be made within
7 days after verdict or finding of guilty or within such further
time as the court may fix during the 7- day period." On its face,
that Rule limits the motion to the 7-day period unless the
defendant requests more time within those 7 days. Holt did not
request an extension of time within the 7 days in order to file his
amended motion. Furthermore, under Rule 45(b), a court "may not
extend the time for taking any action under Rule . . . 33 . . .
except to the extent and under the conditions stated in [that
rule]." Therefore, the district court had no discretion to extend
the time for filing a motion for a new trial once the 7-day period
had expired. The supplemental motion in this case raised two
claims, neither of which had been presented in the original motion.
[footnote 1] Holt's argument that we should allow an amended or
supplemental motion to relate back to the original date would
defeat the express language of the rule, and would create a back
door through which defendants could raise additional grounds for a
new trial long after the 7-day period had expired. We therefore
agree with the district court, and with other circuits that have
considered the issue, that a defendant cannot amend his motion for
a new trial to include an additional ground after the 7-day period
has expired unless the district court granted an extension of time
within the original 7-day time period. Accord United States v.
Hall, 854 F.2d 1269 (11th Cir. 1988); United States v. Newman, 456
F.2d 668 (3rd Cir. 1972). The district court properly refused to
consider Holt's belated challenge to the cross-examination of
Cummings. Even considering the claim, however, Holt failed to
demonstrate error because he has not demonstrated the relevance of
Cummings' 1985 relationship with the BATF to his current
relationship with it; there is no indication that Cummings
currently faces any criminal charges. Holt was permitted to elicit
testimony that the BATF paid Cummings for his information in this
case. Therefore, even considering the claim, there was no error on
this record.
III
Holt also challenges his sentence, arguing that the district
court improperly imposed a 2-level enhancement under section 3B1.3
for abuse of a position of trust. Section 3B1.3 allows an
enhancement when the defendant "abused a position of public or
private trust, or used a special skill, in a manner that
significantly facilitated the commission or concealment of the
offense." The government urges the applicability of that provision
on three grounds: (1) in his capacity as a part-time police
officer, Holt ran the license plate of a government informant, and
found that he was driving a rental car; (2) Holt ignored his duties
and responsibilities as a federal firearms dealer by trading in
illegal weapons; and (3) Holt's dual status as a police officer and
licensed firearms dealer facilitated the commission of the offense
by providing a legitimate backdrop to illegal dealings. The
district court held that the running of the license plate was an
abuse of trust, and applied the two-level enhancement.
It is undisputed that Holt's position as a police officer
enabled him to run the license plate, and that this could
constitute an abuse of public trust. See, e.g., United States v.
Innamorati, 996 F.2d 456, 489-90 (1st Cir. 1993) (abuse of trust
enhancement applied to police officer who ran license plate
registry checks for drug distribution conspiracy). There is no
evidence, however, that Holt's running of the license plate
"significantly facilitated the commission or concealment of the
offense." In fact, the government does not even make any argument
indicating how it did so. Our independent review of the record
reveals that Holt ran the license plate at the request of
Salamanca, and that no further action was taken on the matter. The
request from Salamanca came long after the purchase and sale of the
M-14 at issue in this case. During that time, Salamanca was
involved in the sale of other machine guns to the government
informants, but there is no evidence that those transactions were
part of the conspiracy for which Holt was convicted. In fact, the
government acknowledged that Holt's crime was completed before he
ran the license plates. Moreover, the government can point to no
evidence indicating that the license check facilitated the
concealment of Holt's crime, or even that it was related in any way
to concealment of his crime. Because the Guidelines require
"significant facilitation" and we have no evidence of that, the
incident cannot support the enhancement.
We are left, then, with the government's alternative argument
that the enhancement is justified because Holt abused a public
trust arising from his position as holder of a federal firearms
license. Setting aside the question of whether the federal
firearms license creates a public trust, we hold that the
enhancement was improper because Holt did not use that license to
facilitate the offense. The license he possessed did not allow him
to purchase fully automatic weapons. Therefore, he could not and
did not use the license to purchase the M-14. Regarding the
facilitation requirement, the government argues only that the
federal firearms license allowed him to rent a booth at the gun
show and therefore allowed him access to that market. [footnote 2]
The government essentially asserts only that the license provided
the opportunity for Holt to meet Buckner, and that contact led to
the purchase of the M-14. That incidental access to Buckner,
however, cannot in itself be sufficient to support an enhancement
under section 3B1.3. Application Note 1 to section 3B1.3 states
that "the position of trust must have contributed in some
significant way to facilitating the commission or concealment of
the offense (e.g., by making the detection of the offense or the
defendant's responsibility for the offense more difficult)." The
government's argument that the license allowed Holt to set up a
booth at the gun show does not address that factor. At most, the
booth at the gun show made Holt a more visible target for Buckner
to approach with the illegal sale, but any other attendee at the
gun show could have been approached, and a number of other dealers
were approached first. The government does not assert that Holt's
status as a license holder made the offense more difficult to
detect. We are left then with nothing more than a contention that
the license provided him mere access to Buckner, although it is not
clear how that access was significantly different from the access
obtained by non-license holders attending the show. In prior
cases, we have found that the facilitation element was met where
the position was used to obtain information "essential" to the
scheme, or where it furthered a "crucial element of the scheme."
See United States v. Zaragoza, 123 F.3d 472, 482 (7th Cir. 1997);
United States v. Emerson, 128 F.3d 557, 563 (7th Cir. 1997). We
decline to extend the language of section 3B1.3 to include
situations in which the alleged position of trust furthered the
crime incidentally if at all. The government's argument in this
case falls short of the "significant facilitation" required to
support an abuse of trust enhancement.
Accordingly, we affirm the conviction, vacate the sentence,
and remand for resentencing without the section 3B1.3 enhancement.
FOOTNOTES
1. One of the claims arguably involved newly discovered evidence,
which then could be pursued in a motion beyond the 7-day time
period. Holt does not assert that claim on appeal. We are left,
then, with the claim regarding the cross-examination of Cummings,
which does not involve newly discovered evidence.
2. The PSR appeared to raise another ground: that Holt abused his
trust by using his firearms license to trade six legal weapons for
the machine gun. Presumably, this argument would include a claim
that he falsely documented the weapons trade. The government does
not pursue that argument in its brief on appeal, however, and we
need not address it.